In my response to my post Statutory protection, or not, for QFES (April 18, 2018) I received this comment/question by email:
As a volunteer i.e. not an employee, the principle of vicarious liability for an employee’s negligent acts or omissions wouldn’t apply, so where does that leave a volunteer who is judged to have been negligent while acting under Chapter 3?
I disagree that the principle of vicarious liability does not apply to volunteers. In my post Vicarious liability for the actions of fire wardens (March 5, 2016) I said:
The justification for vicarious liability is not easy to explain – as the judges of the High Court of Australia noted in Hollis v Vabu (2001) 207 CLR 21 ‘A fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has been slow to appear in the case law’ ([35], Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). Some justifications are that the point of liability is to ensure that a person who is injured is compensated. The ‘person’ that can best ensure that happens, either because they have the funds or the insurance policy, will be a person running a business not their employee. If a person is running a business and employs someone the business owner reaps the rewards of the person’s labour, they pay the wages granted but the employee is acting in the employer’s interest not their own. As the employer gets the benefit so too they should take the risk. The employer is also responsible for selecting employees, training them, building the relevant culture that may or may not prioritise safety etc. All things that a person who engages with the business has no control over. So the employer is liable but he or she or it can do much to limit that liability by the way they run the business.
Whilst it’s true that Hollis v Vabu was about the employment relationship the discussion of the policy reasons behind vicarious liability for employees are equally applicable to volunteers. I have no doubt that agencies are vicariously liable for their volunteers at least volunteers that are incorporated into their operations as closely as uniformed members of the emergency services. For a detailed discussion of the principles see Michael Eburn, Emergency Law (4th ed, Federation Press, 2013) pp26-31.
One reason why there aren’t cases to resolve that issue is because … volunteers don’t get sued. They don’t get sued because the only remedy in a civil case is money and no-one sues a defendant who doesn’t have money. People usually laugh when I say that in conferences, but it is absolutely true. Imagine you go to a ‘no win no fee’ lawyer. That lawyer doesn’t get paid unless you get paid. That lawyer is not going to invest his or her time and money pursuing someone who isn’t going to be able to pay. If a volunteer is alleged to have been negligent the lawyers are going to sue the agency because any other route is a pointless waste of everyone’s time, effort and money.
Goodhue v Volunteer Marine Rescue Association
The issue has been tested in Queensland in Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QDC 29 (at first instance) and on appeal as Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 (see also Volunteer liability put to the test (August 3, 2010)). In this case it was alleged that the plaintiff’s boat and slipped free of its mooring and was posing a threat to other vessels. It was re-secured by the Volunteer Marine Rescue Association (VMRA) however it was alleged that the volunteer with the Marine Rescue Association had been negligent in the way he had secured the plaintiff’s boat with the result that the boat ran aground and suffered damage.
Although it was alleged that a volunteer had been negligent, it was the VMRA that was sued. The volunteer was entitled to rely on the Civil Liability Act 2002 (Qld) s 39. That section says:
A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—
(a) organised by a community organisation…
Community organisation means (s 38):
… any of the following that organises the doing of community work by volunteers—
(a) a corporation;
(b) a trustee acting in the capacity of trustee;
(c) a church or other religious group;
(d) a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth) ;
(e) a public or other authority as defined under section 34 ;
(f) a parents and citizens association formed under the Education (General Provisions) Act 2006 , chapter 7;
(g) another entity prescribed under a regulation.
It was accepted that the Volunteer Marine Rescue Association was a community organisation. (QFES would also be a community organisation, see s 38(e), above and s 34).
The court accepted that if the Association was liable it was liable because it was vicariously liable for its volunteer. There was no argument that the Association had been negligent in its ‘policies and procedures’, only that a ‘servant or agent’ of the Association had been negligent and therefore the Association was liable ([176]). The question then, became, if the volunteer was protected by s 39, was the Association also protected or, in other words, if the liability of the Association was vicarious and the volunteer was not liable because of s 39, was the association still liable?
In New South Wales, where a volunteer is protected, so is the agency that uses the volunteers (Civil Liability Act 2002 (NSW) s 3C). There is no equivalent to s 3C in the Queensland Act however Judge McGinness DCJ in Goodhue’s case concluded that the protection offered by s 39 of the Queensland Act extended to the agency. At [172]-[173] Her Honour said:
On its face the section only excludes liability for the defendant’s volunteers. There are two different ways to interpret the section. On one interpretation, it can be read to mean the immunity only applies to the volunteers, that, by implication, it leaves the incorporated associations liable in respect of any negligence of the volunteers. So, effectively, it makes the association liable, rather than the volunteer liable.
The alternative interpretation is that, by excluding the liability of the volunteers, it excludes the vicarious liability of the association…
Her Honour preferred the ‘alternative interpretation’. Because the liability was ‘vicarious’ ie it depended on the volunteers liability being transferred to the agency, where there was no volunteer liability, there was no agency liability.
Her Honour ultimately found, however that there had been no negligence by the volunteer and the claim was dismissed. It must be stressed the claim was not dismissed because the volunteere wsa protected by s 39, it was dismissed because the volunteer had not been negligent
Goodhue appealed to the Queensland Court of Appeal (Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 (McMurdo P, Gotterson JA and Lyons J)). The appeal court did not deal with the interpretation of s 39. Gotterson JA (with whom the other judges agreed) said, at [36]:
[The Trial Judge]… had found that none of the VMR’s authorised agents had acted negligently. She had also found that the VMR did not itself owe any duty of care as pleaded. There is no realistic prospect that any of these liability findings would be overturned on appeal. In these circumstances, neither s 39 nor the other provisions could be engaged.
In other words, in the absence of any negligence there was nothing for s 39 to do, so the Court of Appeal did not have to decide how it would apply if the volunteer had been negligent.
Discussion
There really is no doubt that agencies are vicariously liable for their volunteers. In Queensland and New South Wales a negligent volunteer is protected. Because the liability is vicarious (ie the agency would be required to meet the volunteer’s liability) then the protection of the volunteer also means the agency is not liable (Civil Liability Act 2002 (NSW) s 3C; Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QDC 29).
In the other states and territories, even though the volunteer is protected, the agency remains liable for the negligence of its volunteers – see Civil Laws (Wrongs) Act 2002 (ACT) s 9; Personal Injuries (Liabilities and Damages) Act (NT) s 7; Volunteers Protection Act 2001 (SA) s 5; Civil Liability Act 2002 (Tas) s 48; Wrongs Act 1958 (Vic) s 37; Country Fire Authority Act 1958 (Vic) s 92; Victoria State Emergency Service Act 2005 (Vic) s 42; Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 7 and Commonwealth Volunteers Protection Act 2003 (Cth) s 7. The inference from these Acts is regardless of any arguments at common law, the legislature has specifically moved to ensure that an agency is vicariously liable for its volunteers.
It should be noted that a volunteer can lose the protection of these Acts if he or she knowingly acts:
(a) outside the scope of the activities authorised by the community organisation concerned; or
(b) contrary to instructions given by the community organisation.
Civil Liability Act 2002 (Qld) s 42; see also Civil Laws (Wrongs) Act 2002 (ACT) s 8(2); Civil Liability Act 2002 (NSW) s 64; Personal Injuries (Liabilities and Damages) Act (NT) s 7(2); Volunteers Protection Act 2001 (SA) s 4(3); Civil Liability Act 2002 (Tas) s 47(3); Wrongs Act 1958 (Vic) s 38(1); Volunteers and Food and Other Donors (Protection From Liability) Act 2002 (WA) s 6(3) and Commonwealth Volunteers Protection Act 2003 (Cth) s 6(4).
Those sections do not mean there is no vicarious liability. If a person acted outside the scope of the activities or contrary to instructions and that, in turn caused damage, the plaintiff would still want to sue the agency. The failure of the volunteer to restrict their conduct to the scope of activities and to act according to instructions may be the very evidence of negligence needed to establish liability. As noted with vicarious liability for employees do an authorised act in an unauthorised way (ie acting contrary to instructions) does not deny vicarious liability (New South Wales v Lepore (2003) 212 CLR 511). Acting ‘outside the scope of the activities authorised by the community organisation concerned’ may suggest the volunteer is on a ‘frolic’ of his or her own but it would depend very much on what the volunteer did, why they did it, to what extent was it a departure from the authorised activities and how clear had the organisation defined what was or was not authorised etc.
In New South Wales and Queensland showing that the volunteer is not protected by the relevant section would remove the volunteers’ protection and would, therefore, also remove the agencies protection. A plaintiff may want to argue that the volunteer acted contrary to authority or instructions to establish the volunteer’s liability and therefore get access to the agencies funds on the basis of the agencies common law vicarious liability.
That argument would apply with respect to every exemption. If the volunteer was drunk, one would sue the agency both as being vicariously liable for the negligence of its volunteer and for its own negligence in allowing an intoxicated volunteer to remain on duty. Either way the plaintiff is trying to get to the agency’s funds, or more importantly, the agency’s insurer. Remember no-one wants to sue a defendant who can’t pay.
Let me return to the question which was:
As a volunteer i.e. not an employee, the principle of vicarious liability for an employee’s negligent acts or omissions wouldn’t apply, so where does that leave a volunteer who is judged to have been negligent while acting under Chapter 3?
An agency is vicariously liable for its volunteers, and, further volunteers are generally protected by the Civil Liability Act 2002 (Qld) and equivalent legislation in each state and territory. In every jurisdiction, other than Queensland and New South Wales, the legislature has specifically moved to ensure that agencies are vicariously liable for the volunteers.
Conclusion
Volunteers in Australian emergency services really have to stop worrying about being personally sued. It has not happened and I’m willing to predict it’s not going to happen (unless you’re going to use the authority provided by your uniform to loot a disaster area or sexually assault those you are meant to help).
Australian Emergency Law 
My correspondent responded to this post saying:
I’ve given this scenario further thought. The problem as originally stated was:
The subsequent correspondence add “The solution given is close the road, which is authorised, wait for the police as they are quicker to respond when a road is closed and then suggest to the police that we help in managing traffic under their direction…and don’t do anything else!”
I think what’s happening here is confusing a number of issues.
It’s true that QFES doesn’t have the specific authority (if authority is required) to manage traffic. An authorised fire officer may however ‘close any road or access, whether public or private’ (Fire And Emergency Services Act 1990 (Qld) s 53(2)(g)) but of course he or she may also ‘take any reasonable measure— (a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency’ (s 53(1)) including ‘require any person not to enter or remain within a specified area around the site of the danger’ (s 53(2)(k)). In a situation where there is a hazard and for whatever reason the fire officer doesn’t want to close the road as he or she doesn’t want traffic to wait at the road block and there’s no way to turn the traffic around, he or she may require them to leave the area by given direction when it’s safe to do so. Who knows, every situation depends on its particular facts.
But assuming that isn’t an issue then it must be safer to close the road than have traffic travelling past the fire service, and as noted traffic control is a complex issue and people who do it have undergone training so why do it when you can just close the road? And indeed call police and let them deal with it.
So the advice to close the road and call for police assistance sounds safer and sensible and no doubt is part of QFES having regard to its work health and safety obligations (Work Health and Safety Act 2011 (Qld)). And if a person suffers damage eg the goods in their van perish or they miss their flight, neither the officer nor QFES is liable if that act was done honestly and was not negligent – ie there wasn’t a better and reasonable approach (and traffic management may not be the reasonable approach given the lack of training, risk etc). That’s where s 153B(1), the subject of the first post (Statutory protection, or not, for QFES (April 18, 2018)) is relevant.
Assuming however that the action taken is as described, that is ‘a firefighter manages traffic around [the] incident … believing it was the appropriate thing to do so as to get people away from the situation e.g. a chemical spill by the roadside, but in acting contrary to their authorisation and training’. Have they acted negligently? It depends on all the circumstances, as noted above, but it is not axiomatic that it was negligent. The traffic control may be very competent, an unlicensed untrained driver may still be able to drive competently. The presence of licensing and/or training does not determine whether what was done, was done well or not.
A ‘motorist [who] runs up the back of another vehicle’ is at fault no matter what the traffic controller says or does. A motorist has to take reasonable care, if police direct them to drive over a cliff they don’t have to do it; and if they can see they’re going to hit the car in front, they should stop. And if they don’t see that they’re going to collide and don’t stop, it’s their fault.
But let’s assume all that has been described happens, who are they going to sue? Not the volunteer. The plaintiff would say, rightly, that QFES were on scene, QFES personnel were managing traffic (perhaps both lanes were open at the same time so there’s a head on collision on a blind corner) and you don’t have to have explicit training to have realised that risk and it could have been dealt with by using radios to communicate from one end to the other, radios that no doubt QFES actually have. The driver may also argue that it would have been better to close the road.
If all that’s true then yes the volunteers have been negligent because they failed to think the risks but they weren’t there in their own capacity, they were there as QFES. QFES had to respond, it can’t do it other than by its staff and volunteers and that’s who they represented so QFES was negligent and is also liable for the negligence of its volunteers. If the volunteers can rely on s 39 of the Civil Liability Act both they and QFES are protected; if they can’t then there is liability for which QFES will bear the burden. And QFES couldn’t deny it as it put its agents there and they are doing the work QFES and the community asks of, and expects of them even if not quite the way they are asked to do it. But remember that vicarious liability applies even when doing an authorised task (responding to the chemical spill) in an unauthorised way (New South Wales v Lepore (2003) 212 CLR 511).
A volunteer will be personally liable if he or she tells drivers they have to leave their car and walk back to an evacuation centre and then steals the cars, or steals from the cars. That is the sort of conduct that would be a ‘frolic of their own’. The officer who is negligent (as described) is trying to do the work of QFES even if not in an authorised way.
And consider this. If there was a car accident in front of you when you were driving home would you park your private car in such a way as to render the site safe so you could give assistance pending arrival of the emergency services? I would think you would and do you seriously think that would be an offence? It wouldn’t (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) r 165 and the common law of necessity). Equally if you stood near your car and told oncoming drivers (as others are rendering necessary assistance) ‘There’s an accident up front, you can’t get past so you’ll have to turn around’ do you think that’s an offence? It isn’t, you’re not closing the road; you’re just telling people what’s actually happened. The only implication of your lack of legal authority is that they don’t commit an offence if they ignore you. Same if you’re using a fire appliance.
But if it is an offence that’s a different issue to vicarious liability. If volunteers commit a criminal offence then they will be personally liable. If the advice ‘close the road…[and] wait for the police’ is given because it is believed that alternative is criminal, then neither s 153B(1), the doctrine of vicarious liability or the Civil Liability Act is going to help. But remember the doctrine of necessity is a defence to criminal charges (see The doctrine of necessity – Explained (January 31, 2017)) and also doing what is authorised by statute is not an offence, even if it would be when not authorised by statute.
We’ve all had training where the trainer says, in effect, ‘if you do only that which you have been trained to do and strictly in accordance with our policies and procedures then the agency will stand by you, but if not you are on your own and you’ll be sued and liable and no-one will help you’. The problem with that training story is … it’s rubbish. It’s training by fear and it “simply creates uncertainty in difficult situations”. Either the trainer has been misled (most likely) or want’s to scare trainees into compliance. Either way it’s wrong and unhelpful.
I can only say again, the issue of potential civil liability for volunteers (that is liability to pay damages), except in cases where the volunteer is ‘going to use the authority provided by your uniform to loot a disaster area or sexually assault those you are meant to help’ is a non-issue. Volunteers have better things to worry about and if it really worries you, it’s time to rethink your volunteering as no further amount of law reform or discussion is going to put your mind at rest.